Alimony is the most commonly used term for a regular payment one spouse makes to the other spouse to provide support during or after a divorce proceeding. The spouses may agree to alimony, or the court may order it. In Texas, a court order for alimony is called “spousal maintenance.”
Qualifying for Spousal Maintenance
The court can order spousal maintenance if the spouse seeking support will not have enough property at the time of the divorce to provide for basic needs and one of the following circumstances exists:
- one spouse is convicted of committing family violence against the other spouse or the other spouse’s child during the marriage, if the violence occurred during the divorce proceedings or within two years before the filing of the divorce action
- the spouse seeking support is unable to earn enough income to provide for basic needs because of a physical or mental disability
- the spouses were married for ten years or longer, and the spouse seeking support is unable to earn enough income to provide for basic needs, or
- the spouse seeking support has custody of a child of the marriage who requires special care and supervision because of a mental or physical disability, preventing the custodial spouse from earning enough income for basic needs.
Presumption Against an Order for Spousal Maintenance
Except where there is a conviction of family violence, the court will start by assuming that an order for spousal maintenance is not appropriate. To overcome the assumption, the spouse seeking support will need to convince the court that she or he has made a good effort to earn income or to develop skills to provide for basic needs during the separation and divorce proceedings.
Factors the Court Will Consider when Ordering Spousal Maintenance
Once the court determines that an order for maintenance is appropriate, the judge will next consider several factors to determine how much support to award and how long the support should last:
- each spouse’s financial resources at the time of the divorce and the ability to provide for that spouse’s own basic needs
- each spouse’s education and employment skills, how long it would take and how manageable it would be for the spouse seeking maintenance to receive education or training, and the availability of the training or education
- the length of the marriage
- the age, employment history, earning ability, and physical and emotional health of the spouse seeking maintenance
- whether either spouse is paying child support and, if so, how the child support payments affect that spouse’s ability to also provide for his or her own basic needs
- whether either spouse spent community property funds excessively or destroyed, concealed, or fraudulently disposed of joint property
- whether the spouse seeking support contributed to the education or training or increased the earning ability of the other spouse
- the property each spouse brought to the marriage
- whether one spouse was a homemaker during marriage
- any acts of adultery or cruel treatment by either spouse, and
- any history or pattern of family violence.
Duration of Spousal Maintenance
When the court orders support for a spouse who needs it because of a physical or mental disability or because the spouse is the custodian of a child with a physical or mental disability, then the order can continue for as long as those conditions exist. The court may order periodic hearings to be sure the circumstances haven’t changed.
All other spousal maintenance orders are time-limited by Texas law. An order for spousal maintenance can last no longer than:
- five years, if the marriage lasted less than ten years and the court ordered maintenance because the paying spouse committed an act of family violence
- five years, if the marriage lasted between ten and 20 years long
- seven years, if the marriage lasted between 20 and 30 years long, and
- ten years, if the marriage lasted 30 years or longer.
No matter what the circumstances are, the court must limit the order to the shortest reasonable time that will allow the spouse receiving payments to be able to earn enough income to meet basic needs, unless that spouse cannot do so because of a physical or mental disability, because of duties caring for an infant or young child of the marriage, or because there is some other reason that the spouse cannot becoming self-supporting.
A maintenance order will end before its termination date when:
- one of the spouses dies
- the spouse receiving maintenance remarries, or
- if the court finds after a hearing that the spouse receiving maintenance lives in a permanent home with another person in a dating or romantic relationship.
Amount of Support
A monthly support payment cannot be more than $5,000 or 20% of the paying spouse’s average gross monthly income, whichever is less.
Taxes on Spousal Maintenance
In general, the spouse paying support can deduct the payments from income. For the spouse receiving support, the payments count as income and are taxable.